Nintendo Co Ltd v Care [2000] FCA 1538

Nintendo Co Ltd v Care [2000] FCA 1538

The Court granted interlocutory relief because the applicants established serious questions to be tried on trade mark infringement, passing off and contraventions of the Trade Practices Act arising from the respondents' visually similar Da' Super Mario character and use of the Da' Super Mario name; business name registration did not confer a defence; damages were not an adequate remedy for interference with reputation and goodwill; the balance of convenience favoured relief; and the applicants' delay had not caused sufficient prejudice to disentitle them to an injunction.

Jurisdiction
Australia
Judgment Date
25 October 2000
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Application Pending Trial
Outcome
Interlocutory injunction granted; costs reserved.
Legal Topics
['infringement of Registered Trade Marks' 'passing Off' 'false Attribution of Sponsorship, Authorisation or Affiliation' 'video Game Character Get Up and Name' 'business Name Registration' 'delay in Seeking Interlocutory Relief' 'balance of Convenience']
['intellectual Property' 'trade Marks' 'passing Off' 'consumer Protection'] ['infringement of Registered Trade Marks' 'passing Off' 'false Attribution of Sponsorship, Authorisation or Affiliation' 'video Game Character Get Up and Name' 'business Name Registration' 'delay in Seeking Interlocutory Relief' 'balance of Convenience']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction / Interlocutory Application Pending Trial

Legal Issues

  1. 1 ["Whether there was a serious question to be tried that the respondents infringed registered trade marks by using the name and character Da' Super Mario." "Whether there was a serious question to be tried that the respondents passed off their Da' Super Mario character as associated with the applicants' Super Mario character." "Whether there was a serious question to be tried that the respondents' conduct contravened ss 52, 53(c) and 53(d) of the Trade Practices Act 1974 (Cth) by falsely suggesting sponsorship, authorisation or affiliation." 'Whether damages would be an adequate remedy and where the balance of convenience lay.' 'Whether delay disentitled the applicants to interlocutory relief.' "Whether registration of the business name Da' Super Mario gave the respondents a defence or right to use the name."]

Ratio Decidendi

The Court granted interlocutory relief because the applicants established serious questions to be tried on trade mark infringement, passing off and contraventions of the Trade Practices Act arising from the respondents' visually similar Da' Super Mario character and use of the Da' Super Mario name; business name registration did not confer a defence; damages were not an adequate remedy for interference with reputation and goodwill; the balance of convenience favoured relief; and the applicants' delay had not caused sufficient prejudice to disentitle them to an injunction.

Court Disposition

Interlocutory injunction granted; costs reserved.

Orders

  • ['Until the trial of the proceeding or further order the respondents and each of them, whether by themselves, their officers, employees or agents or otherwise, howsoever be restrained from conducting or promoting wrestling matches involving, selling or offering to sell goods which include a representation of, or...